The State ex rel. Attorney-General v. Hawkins. FOLLETT, J., dissenting. My reasons for urging the constitutionality of this police statute are sufficiently set forth in the opinion in the case of The State ex rel. Attorney-General v. Hudson, infra, 137, but I dissent from the holding of the majority of the court on other propositions here, viz.: That the governor had ample power to pass upon the official conduct of the board of commissioners, and to remove them from office if he deemed them guilty of "official misconduct;" and that the power of removal was properly exercised here. I shall set forth some reasons for my dissent. The facts should be known. On April 4, 1885, the board of public works of the city of Cincinnati appointed as a board of police commissioners of that city Will. A. Stevens for the term of one year, Julias Reis for the term of two years, and Morton L. Hawkins for the term of three years, from the eighth day of April, 1885. They entered upon the discharge of their duties, and performed the same until February 3, 1886, when, it is alleged, they were removed by the governor. They denied the validity of the removal and retained their offices, and this action is here for a judgment of ouster. The defendants answer, and the relator by his demurrer admits the answers and allegations therein to be true. These show that, on January 24, 1886, charges were preferred against all the police commissioners. These charges set forth their appointment, and that they had vested in them all police powers and duties connected with the police force of the city of Cincinnati, and that for official misconduct they or either of them could be removed by the gov ernor. They charge, as official misconduct, that, on August 25, 1885, they made an order on their minutes" that Michael Mullen be reinstated to his position of lieutenant, to take effect at once," Hawkins and Reis voting aye, and Stevens voting nay; and that, October 2, 1885, by the same vote, Mullen was promoted to be inspector of police; that Mullen, at the October term, 1884, of the circuit court of The State ex rel. Attorney-General v. Hawkins. the United States, held in Cincinnati, was indicted for preventing certain citizens from voting at an election for representatives in congress, such persons being entitled to vote at that election; that such offense was committed while Mullen was lieutenant of the police force of the city of Cincinnati, and was in charge of the Hammond street station-house in the city; that he was found guilty, and he was sentenced to be imprisoned in the jail of Hamilton county for twelve months, and to pay the costs of prosecution. No part of the testimony is given, but they contain what purports to be certain remarks of the judge. The charges. averred that the board of commissioners knew what Mullen had done, and that he was so found guilty and sentenced. They further charged that, on October 17, 1885, by the same vote, the board appointed one John Tosney as a patrolman of the force; and that, when appointed, he had been arrested upon the charge of stuffing the ballotbox and violating his duties as judge of election of precinct A of the Fourth ward, October 13, 1885, and that the board knew the same; and that the board unanimously, on August 14, 1885, had dismissed Tosney from the force. for drunkenness. They also charge that, October 17, 1885, the board suspended, and on October 27, 1885, dismissed from the force one Herman F. Newman, and allege that his dismissal was without cause and in violation of official duty; and that he was dismissed because he had discharged his duty and had arrested Tosney. The charge states that the police commissioners have appointed and kept on the regular police force a large number of men wholly unfit to act as police officers. They charge that, on October 13, 1885, and for some days prior thereto, the board appointed a large number of special policemen, who were wholly unfit to act as such officers, as was well known to the board, and name a large number of men. The State ex rel. Attorney-General v. Hawkins. That there was an organization in the city of Cincinnati to secure an honest and fair election, known as the committee of one hundred, and this committee, before the election of October 13, 1885, caused warrants to be issued for violations of the registry law and other offenses, and a subcommittee of that committee waited on the police commissioners and told them of the same and 'urged their arrest, and that they willfully refused to discharge their duties and arrest such accused persons; and that the board failed to take steps to secure an honest election. The charges thus conclude: "Wherefore your petitioners ask that said Morton L. Hawkins, Julius Reis, and Will. A. Stevens, be notified of the charges filed herein against them for official misconduct; that they be afforded time to file any answer they may desire to make to said charges; that a time be set for a hearing of the same; and that your excellency may take such action in the premises as the testimony in the case may warrant; and that, if said police commissioners be found guilty of the charges herein, they may be removed from their said office." These charges were signed by an ad interim committee of the committee of one hundred, January 23, 1886. It is plain to see that this committee thought the governor possessed sufficient judicial power to try these charges, and that a decision as to whether or not either of the police commissioners was guilty of official misconduct would depend upon the testimony in the case. On January 25, 1886, a copy of these charges was served upon each of the police commissioners, and February 3, 1886, at the governor's office in Columbus, was set "for the hearing of the same at this office upon such testimony as may then be offered in support of or against said charges." Hawkins was too sick to attend to business and asked for time to answer. Reis and Stevens each filed a separate answer. Reis admitted that he was police commissioner, and he denied the governor's jurisdiction over the matters charged, and he denied "each, all and every statement set The State ex rel. Attorney-General v. Hawkins. forth in said charges," and he denied that he had been guilty of any official misconduct or had failed to discharge the duties of his office or had improperly discharged the duties imposed upon him. He admitted that he voted for the appointment and pro-' motion of Michael Mullen, that Mullen was indicted and convicted as charged, and he averred that Mullen, prior to the charges for which he was indicted, had been a faithful and efficient officer of police, and that he, Reis, was informed at the time of the conviction of Mullen that the facts were as follows: that Mullen in the discharge of his duty as lieutenant of police, having received an order from the mayor to arrest all suspicious persons, and having received information that a large body of persons were congregated at certain places in the city of Cincinnati on the evening before election day, not legal voters in the city, but non-residents of the county and state, who had come to Ohio for the very purpose of violating the election laws to be held upon the following day; and in purpursuance of the information so brought to him, and in obedience to the order so received from the mayor, arrested a large number of said alleged illegal voters in good faith and for the purpose of carrying the election laws of Ohio into effect, and to prevent illegal voting. That inadvertently in making the arrest of so large a number of persons, there were included therein three or four persons who were legal voters, found in the company of the assemblage of persons so congregated together for the purpose of violating the law, and that whilst technically guilty of the crime charged against him in the court, he was innocent of all purpose of practicing a fraud upon the rights of any one entitled to vote. That after conviction and he had served a portion of his sentence he received from the president of the United States, a full and complete pardon for the offense charged against him. And that he, Reis, believed such a pardon blots out the offense so that it can not be imputed to the one pardoned. And he referred to Knapp v. Thomas, 39 The State ex rel. Attorney-General v. Hawkins. Ohio St. 381, where Okey, J., says, "by force of the pardon he was restored to all his civil rights and privileges. A pardon reaches both the punishment prescribed for the offense and the guilt of the offender. Exp. Garland, 4 Wall. 333, 380. It obliterates, in legal con-templation, the offense itself." That he, Reis, believed he should so act, and that in view of the previous good character of Mullen in that community and in view of his efficiency as a police officer, etc., he voted as he did. That since then Mullen so conducted himself in his office and so effectively performed his duties to the satisfaction of the citizens of Cincinnati, that he voted for his promotion, and respondent believes Mullen has ever since conducted himself as an orderly, well-behaved and competent police officer; and that in voting for Mullen he did so with the single and sole purpose of performing his duty as he was bound in law to do. As to Tosney he denied that he knew of any thing against him, except at one time drunkenness, when he was dismissed; and that before he was reappointed he heard he had reformed, and his reappointment was asked for by many respectable and influential citizens; that he did not know that Tosney had been accused, or was a judge of election. That the dismissal of Newman was not without cause, and he denies it was in violation of the duty imposed upon him as police commissioner, or that it was occasioned by the arrest of Tosney by Newman, and denies that Newman was discharged because he performed his duty; but he avers that Newman was inefficient, was complained of by his superior officer and was discharged from the force for good cause, and specified times when he remained away from duty when needed, and when he engaged in a brawl in a public saloon, specified when he had been guilty of several offenses, had been arrested for an assault on an old man, and had been charged with intoxication and insubordination, and that for an attempt at blackmail Newman was dismissed by the republican board of public works, and |